Buck Kreihs Co., Inc.

352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Buck Kreihs Company, Inc.. and Melvin P. Gorbach and International Association of Machinists and Aerospace Workers, AFL-CIO. Cases 15-CA- 5785 and 15-CA-5787 December 16, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On August 31, 1976, Administrative Law Judge James M. Fitzpatrick issued the attached Decision in this proceeding. Thereafter, Charging Party Gorbach and the General Counsel filed exceptions and sup- porting briefs, and the Respondent filed cross-excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. DECISION STATEMENT OF THE CASE JAMES M. FITZPATRICK, Administrative Law Judge: In this case an employee was denied reinstatement following an economic strike. The issue is why. The General Counsel contends it was because of his union activities. The employer claims it had other, lawful reasons. As set out below I find in favor of the employer. The case arises from two sets of unfair labor practice charges, the first filed August 12, 1975,' by Melvin P. Gorbach, an individual, and the second on August 18 by International Association of Machinists and Aerospace Workers, AFL-CIO (IAM), against Buck Kriehs Compa- ny, Inc. (Respondent). Based on these charges a complaint issued April 1, 1976, alleging that Respondent had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act by refusing to reinstate Gorbach following a strike. On April 9, 1976, Respondent answered by admitting most allegations of the complaint but denying that Gorbach had unconditionally applied for reinstate- ment, or that Respondent had refused to reinstate him, or had refused to reinstate him for discriminatory reasons. The case was heard before me at New Orleans, Louisiana, on May 20, 1976. Based on the entire record, including my observation of the witnesses, consideration of the arguments of counsel made at the hearing, and the briefs filed by Respondent and the General Counsel, I make the following: ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. 1 The General Counsel and Charging Party Gorbach have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Both the General Counsel and Charging Party Gorbach except to the Administrative Law Judge's conclusion that the arbitration herein was fair and regular and not repugnant to the purposes of the Act We find it unnecessary to pass on the validity of the arbitration because in our view Respondent's reasons established on the record herein for not reinstating Gorbach constitute legitimate business justifications and are adequate to answer all the allegations of discnmination. 227 NLRB No. 61 FINDINGS OF FACT 1. THE EMPLOYER INVOLVED Respondent, a corporation, is engaged in the marine repair business at New Orleans, Louisiana. During the calendar year preceding issuance of the complaint, a period representative of its operations, it purchased and received at its New Orleans facility directly from suppliers outside Louisiana goods and materials valued in excess of $50,000. I find that Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. In the operation of its business Respondent employs various crafts including machinists, boilermakers, team- sters, carpenters, laborers, and sheet metal workers. The employees in each craft are represented by their appropri- ate craft union. Respondent and five other employers similarly situated are members of an employer association known as the Manufacturers and Repairers Association of New Orleans.2 The Association represents its members in collective bargaining. 1 All dates herein are in 1975 unless otherwise indicated. 2 The other members of the association are Boland Marine & Manufac- turing Co., Inc., Dixie Machine Welding & Metal Works, Economy Iron Works, Inc, Gulf Engmeenng Co., Inc., and Prager, Inc BUCK KREIHS COMPANY 353 II. THE LABOR ORGANIZATION INVOLVED AND ITS - RELATIONSHIP = WITH RESPONDENT on April 13 when the Union and Respondent agreed on terms for a new contract. The machinists employed by Respondent are represented by International Association of Machinists- and Aerospace Workers, Crescent-City Lodge 37, AFL-CIO (the Union), which is affiliated with the -JAM. Both are labor organiza- tions within the meaning of Section 2(5) of the Act.- The Union on behalf of machinists, as well as the other labor organizations representing other crafts, negotiates collective-bargaining agreements with the Association. There is currently in effect a collective-bargaining agree- ment between the Union and members of the Association, including Respondent, for the period February 16, 1975,- to February 15, 1978. This agreement is the latest of a long series of such agreements between the Union and Respon- dent. For the past 25 years (including the last 18 years since the organization of Respondent in its present form) the Union has represented machinists employed by Respon- dent and its predecessor in business. III. THE ALLEGED , UNFAIR LABOR PRACTICES A. Gorbach's-, Employment with Respondent Gorbach began working for Respondent in July 1972 as a journeyman inside machinist. He continued working with- out interruption until February 1974 when, according to his testimony, he was laid off. He returned to work in June 1974, continuing without interruption until he was injured at work in September of that year. He was out 4 to,5 weeks as a result of the injury. He then returned to work until mid- February 1975 at which time-the machinists went on strike. Gorbach has not worked for the Respondent since that time. - B. Gorbach's Union Activity Gorbach is a member of the Union . In December 1974 in anticipation of contract negotiations he was elected, along with Shop Steward Thomas White, to the negotiating committee representing the, interests of the machinists in Respondent's shop. Each of the other five shops in the Association were similarily represented on the union negotiating committee. As members of the negotiating committee Gorbach and White presented the views of machinists in their shop to the negotiating committee and reported back to their fellow workers on developments in the bargaining. After the machinists strike began in mid- February, Gorbach assisted in supervising the picketing as well as engaging in picketing himself. C. The Strike Beginning in mid-February 1975 and continuing to April 13 the machinists employed by Association members engaged in an economic strike in support of union bargaining demands. The other crafts , which were engaged in contract negotiations about the same time, did not strike. On March 17 Respondent sent a letter to its striking employees urging them to continue working and enclosing a blank form of resignation from the Union. No machinists returned to work in response to the letter. The strike ended D. Rizzuto's Tip-Off Joseph Rizzuto, business representative of the Union, was its principal spokesman during contract negotiations. As `noted earlier Gorbach had suffered an injury at work the prior September-. According to Rizzuto, Gorbach had commented during the strike that when the employees returned to work he was going to have to reopen his workmen's compensation claim. Gorbach testified he made no such statement. I credit Rizzuto rather than Gorbach because Rizzuto testified contrary to his best interest while Gorbach's testimony favored his interest. Rizzuto further testified, and I find, that during the last 3 weeks of the negotiations he told -the chief employer negotiator, Raphael Morvant (executive director of the Association), that when the striking machinists returned to work the Union intended to -reopen Gorbach's workmen's compensation claim because his-back was hurting. Respondent's vice -president and general manager, Sal Liberto, testified that while the strike was still on Morvant informed him of Rizzuto's comment. Morvant apparently embellished on the comment somewhat because Liberto credibily reported their conversation as follows: He (Morvant) said that Mr. Rizzuto had told him to watch-that he overheard Mr. Gorbach say, during the negotiations, while we were on ,strike, to watch this man-when they returned back to work he will open- have a back injury or develop- one somewhere but he will definitely introduce a new case-a compensation case against Buck Kriehs Company when he returns back to work. Because Morvant did not testify, the General Counsel urges, that an inference should be drawn that these conversations did not occur . I do not agree. It seems to me no link is missing. The first conversation between Gorbach and Rizzuto is established by the credible testimony of Rizzuto. The second between Rizzuto and Morvant is established by the uncontradicted testimony of Rizzuto. There is no basis for inferring that Morvant would contradict him. The third conversation is established by the uncontradicted testimony of Liberto . There is no basis for inferring that Morvant would contradict him Even if the message as testified to by Liberto varied somewhat from what Rizzuto was willing to admit he had launched, the fact remains that some warning words about Gorbach's workmen's compensation claims reached the ears of Liberto before the strike ended. That message, whatever the particulars, caused him to look into Gorbach's history of industrial accidents. He found that there was a pending case against Respondent based on the September 1974', injury. He also learned from Morvant that Prager, another member of the Association, had had extensive litigation over a workmen's compensation claim of Gor- bach! Liberto contacted Prager who told him that Gorbach had begun working for him in 1963 , had injured his back shortly thereafter, and subsequent to the injury suffered two automobile accidents. Prager asserted that Gorbach had 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tried to claim workmen's compensation for injuries suffered in the auto accidents. Liberto testified credibly, and I find, that based upon his investigation of his own company files and his conversation with Prager he decided before the strike ended that in view of Gorbach's past-injuries Respondent could not afford to ''I I have him as an employee.. The evidence shows that although Respondent carries insurance against - workmen's compensation claims,, it is self-insured to the extent of the first $40,000 on each claim. The evidence also shows that machinist work in Respon- dent's shop frequently involves heavy work and that the risk of industrial accidents is substantial. - E. TheApril 14 Application As noted above, the strike ended on April 13 when the parties agreed on a new contract. The following morning the machinists, including Gorbach, who was one of the earliest to show up, reported for work. Most of them, including Shop Steward White, were put back to -work. Four, including Gorbach, were not put to work. According to • Liberto those who were selected to work -were chosen because oftheir ability. At the end of the strike Respondent did not have work-for all of the machinists. Liberto told Gorbach there was not enough work to hire him. He said nothing about his limited capabilities, although at the hearing- he testified that Gorbach could only do certain work in the shop. Nor did he say anything to Gorbach about his workmen's compen- sation claims. For about 2 weeks after April 14 Gorbach checked with Respondent almost on a daily basis, seeking work as a day- shift machinist, only to be told that the Company did not have sufficient work available to put him on the payroll. The General Counsel contends that the failure to return Gorbach to work on April -14 violated Section 8(a)(1) and (3) of the Act because his selection as one of those not to be recalled was discriminatory and because he was entitled to recall at the-conclusion of an economic strike. As set out hereinafter I find that Respondent did not violate the Act on April 14. F. The Grievance and Arbitration The contract between the parties provides for a three-step grievance procedure and a final step of binding arbitration before a three-member arbitration panel. Following Respondent's refusal to reinstate him on April 14 and the days after, Gorbach filed a grievance with the Union which was processed unsuccessfully through the three steps of the grievance procedure and finally brought before Arbitrator Bernard Marcus who, by agreement of the parties, acted as a one-man arbitration panel. The matter was heard by him on July 2 with the Union Grand Lodge Representative Dan Blue and Business Representa- tive Joseph Rizzuto representing Gorbach and the Union, and Morvant and Liberto representing Respondent. Gor- bach himself was present. Both sides argued the case orally, offered evidence including testimony and exhibits, and filed posthearing briefs. In the grievance and arbitration proceedings Respondent took the position that it had refused, to reinstate Gorbach because there was not sufficient work available. The Union contended that ample work was available and that Respon- dent was ` obligated -both under the collective-bargaining agreement and the strike-settlement agreement to reemploy Gorbach. The arbitrator ° found` that Respondent had established prima facie that there was not sufficient work available to employ Gorbach and that the Union had not established the contrary. - The arbitrator also noted that -in his grievance Gorbach- alleged that Respondent had failed to reemploy him because of his union activities. Thus, the issue of discrimi- nation was before the arbitrator. In his decision the arbitrator did not specifically address himself to that issue. But in finding that lack of available work-justified Respon- dent's not reinstating Gorbach, he implicitly found that no discrimination had occurred. His- final award, issued about August `l, was as follows: There has been no proof that the Employer has violated the contractor the strike-settlement agreement. Particu- larly, there is -no basis for finding that the Company violated the obligation to return all employees to work "provided work is available," as set forth in Paragraph 8 of the strike-settlement agreement. The grievance is denied. The complete provision of-the strike-settlement agree- ment referred to by the arbitrator reads as follows: 8. All employees on strike shall be - immediately returned to work, provided work is available, with- full rights, privileges, and benefits as they would have had or would have received if the strike had never occurred, provided the contract is ratified and the men report for work by April 14, 1975. During the arbitration Liberto testified that there was not sufficient work available and also that Gorbach was a machinist of limited ability. But he made no reference whatsoever to any workman's compensation problem which he testified in the unfair labor practice proceedings was the real reason he refused to reinstate Gorbach. In the present proceeding Respondent contends that it, was not obligated to-reinstate Gorbach following the strike because he was a machinist of limited abilities for whom insufficient work existed at that time and that even if work has existed Respondent had a sound, though secret, reason because of the risk of workmen's compensation claims. Respondent contends these are sound business reasons and do not convict it of discrimination for union activity as contended by the General Counsel. In view of the principles set out in Spielberg Manufactur- ing Company, 112 NLRB 1080 (1955), the question arises as to the impact of the arbitrator's award on these issues. The arbitration proceedings appear to have been fair and regular. All parties had agreed to be bound by the results. The decision of the arbitrator is not clearly repugnant to the purposes and policies of the Act. Accordingly, the award should be respected on those matters with which it dealt. BUCK KREIHS COMPANY 355 These include the following; (a) Gorbach is a journeyman machinist capable of performing some,.; but not all, of the duties of a machinist in,Respondent's shop; (b) following the strike there was insufficient work available to employ all of the striking, machinists; (c)_ the selection of Gorbach as one of four machinists not recalled was not for discrimina- tory reasons. I disagree with the General Counsel's contention that on the issue of discrimination the award should be disregarded because certain evidence presented in the present unfair labor practice proceeding wasnot presented in the arbitra- tion proceeding. Those are insufficient reasons for disre- garding - the finality of a settlement reached through voluntarily agreed-upon 'dispute settlement machinery. Local 1522, International Brotherhood of Electrical Workers, AFL-CIO (Western Electric Conipuny,' Inc.), 180 NLRB 131, 132 (1969); cf. Airco Industrial Gases-Pacific, a Division ofA ir Reduction Company, Incorporated, 195 NLRB 676 (1972). The question is not free from doubt because of Respondent's lack of forthrightness in withholding what it now contends is its principal reason for not reinstating Gorbach. -But- the existence of additional reasons for not reinstating him provides no reason for thinking the, award would have been different. Another cause for doubting the validity of the arbitration award is the fact that the union representative tipped off the Employer regarding the risk of workmen's compensation claims and then later represented that employee in the grievance and arbitration proceedings. The record does not reveal whether Rizzuto's conversation with Morvant was part of a bargaining, interchange. Nor does the record reveal whether during the grievance and-arbitration pro- ceedings Rizzuto knew- that Liberto's core position--was founded on his fear, ;of workmen's compensation risks, a fear which Rizzuto had triggered.- I note, however, that Rizzuto was not the only union representative present at the arbitration hearing. LAM Grand Lodge Representative Dan Blue and Gorbach also participated. I note further that not only Gorbach, but also the IAM, filed unfair labor practice charges in the present matter. Considering the whole picture, and without condoning the duplicity of Liberto or the ambiguity of Rizzuto's conduct, it does not seem to me that the position of the Union and Gorbach are so out of harmony with each other as to-invalidate or emasculate the Union's representative capacity in the grievance and arbitration. National Radio Company, Inc., 198 NLRB 527, 532 (1972); cf. Kansas Meat Packers, a Division ofAristo Foods, Inc., 198 NLRB 543 (1972). G. The Advertisement Between the arbitration hearing on July 2 and the award about August 1 Respondent developed a need for journey- men machinists . Liberto first called the Union for referrals and then on July 14 placed a newspaper advertisement for shop machinists. Liberto admitted that Gorbach could have filled one of these openings if he had not otherwise been objectionable to Respondent. Gorbach saw the July 14 advertisement and with a friend, who was also a journeyman machinist, immediately applied at Respondent's shop. The foreman forthwith hired the friend but told Gorbach he would have to see Liberto. Gorbach then applied to Liberto who rejected his applica- tion saying he had not hired him after the strike and would never hire him. According to Gorbach, Liberto said ,there- was no work for, him even if they had work-coming out the top of the building. According to Gorbach he then asked why and Liberto replied that he did not learn to keep his mouth shut. Liberto denied that Gorbach had asked him wily or that Liberto said he would not hire him because he did not keep his mouth shut. I do not credit this denial because it seems logical to me that Gorbach would have asked him why. And even though it seems somewhat out of character for Liberto to have made ' the remark ' about keeping his mouth shut, ' his making such a , remark -is consistent with Liberto's receiving the tip-off ' through Morvant from -Rizzuto which initially sprung from a comment made by Gorbach. It is undisputed that in this conversation Liberto made no specific reference to any workmen's compensation prob- lems. According to him this was intentional because he wanted to save Rizzuto embarrassment. I credit 'this testimony of Liberto because it surely would have been embarrassing to Rizzuto to have revealed him as the source of a warning about workmen's compensation claims. H. Gorbach's Effort To Reopen the Arbitration After being again rejected for reinstatement in mid-July, Gorbach again contacted the Union about what to do. He was advised to await the outcome, of the arbitration. He followed this advice. Around the first of August the arbitration award issued rejecting his claim. On August 5 he wrote to the arbitrator calling attention to the advertise- ment and recounting his unsuccessful efforts- to obtain reinstatement. He asked that the arbitration be reopened. On August 7 the arbitrator responded by a letter to Morvant of the Association and Rizzuto of the Union, with a copy to Gorbach, refusing to reopen`-the arbitration without consent of both contracting parties. Such consent apparently has never been given. The instant unfair labor practice charges by Gorbach were filed a few days later on August 12 and those by the Union on August 18`. : - I. Discussion It is undisputed that when Gorbach reapplied in July the grounds asserted earlier for not taking him back no longer existed. The only ground asserted then was his inability to keep his mouth shut. In the circumstances of this case that reason was, to say the least, ambiguous. It could apply to any topic. The General Counsel would relate that comment to Gorbach's union activity. But there is no evidence that he was particularly vocal in his union activities. As already noted, the remark more logically relates to his talking about his workmen's compensation claims. There is, then, no credible evidence of animosity on the part of Respondent towards Gorbach's union activity. On the contrary, the evidence as a whole indicates a lack of union animus. The Respondent has a long established relationship with many unions including the Union here. Gorbach's union activity was not unusual. It related to his membership on the negotiating committee and his activities 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as a committee member during the strike. But there were two delegates on that committee from each of the six employer-members of the Association. The bargaining was carried on principally by the Union's business representa- tive. There is no evidence of any specific leadership in the negotiating by any of the employee delegates, including Gorbach. If anything, the other delegate from Respondent, Shop Steward White, held a more significant and active position by virtue of his also being shop steward. At the conclusion of the strike all but four strikers, including the shop steward, were returned to work. Of the four who were not reinstated in April, only one, Gorbach, is alleged to be the victim of discrimination. Another general circumstance to be noted is that the economic strike in this case involved six companies, not just the Respondent. The other crafts employed by member employers of the Association continued working during the machinists strike. This is a case not of a hard shell antiumon employer willing to go to any lengths to discourage unionism but rather of a union operator who with other members of its association is involved in an economic dispute with one of a number of unions with whom it has long had a collective-bargaining relationship. The General Counsel rightly points out that following the economic strike Gorbach was entitled to reinstatement, absent legitimate and substantial business considerations justifying refusal of reinstatement, and that denial of reinstatement would violate Section 8(a)(1) and (3) of the Act even without specific proof of discriminatory purpose. Here the fear of liability for industrial accident claims was a legitimate reason for denying reinstatement. I find that Respondent has met its burden of establishing that valid reason. N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967); N.L.R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375 (1967). Unlike the General Counsel, I do not read Fleetwood as limiting valid business justifications to the two types noted there. At other times, as for example in Great Dane, the Court has spoken in broader terms. Although there is some causal relation between the strike and Gorbach's problem of reinstatement in that he may not have faced the problem if the strike had not occurred, the reason for not recalling him'is essentially unrelated to the strike. Permitting Respondent to use that reason, in the circumstances of this case does not, in my view, do serious harm to employee rights. Respondent's shifting of reasons for failing to reinstate Gorbach gives rise to mistrust as to its true reasons and in particular raises questions as to the credibility of Liberto. But these doubts must be balanced against the undoubted soundness of the business judgment in avoiding a further employment relationship with an industrial risk, Gorbach. Further doubt is raised by, Respondent's delay in offering, what seems to be a sound business reason, a delay which amounted, to a coverup. In the present proceeding Respon- dent belatedly explains the coverup as an effort to avoid embarrassment for the union business representative. I find that explanation satisfactory because it surely is an embar- rassment to him. In sum, I find that a preponderence of the evidence fails to establish a discriminatory motive in Respondent's refusal to reinstate Gorbach. I further find it had valid business reasons for not returning him to work. Accordingly, the refusals to reinstate him were not unfair labor practices. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union and the IAM are labor organizations within the meaning of Section 2(5) of the Act. 3. The Respondent has not committed unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act by refusing to reinstate employee Melvin Gorbach. Upon the foregoing findings of facts, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS The complaint is dismissed in its entirety. 3 In the event no exceptions are filed as provided by Sec. 102.46 of the of the Rules and Regulations, be adopted by the Board and become its Rules and Regulations of the National Labor Relations Board, the findings, findings, conclusions, and Order, and all objections thereto shall be deemed conclusions, and recommended Order herein shall, as provided in Sec. 102 48 waived for all purposes.